Massy v. Milwaukee Electric Railway & Light Co.

143 Wis. 220 | Wis. | 1910

Tte following opinion was filed May 24, 1910:

Dodge, J.

This case presents a situation not unfamiliar but of rather recent development since the greatly enlarged use of electricity transmitted over wires for tbe creation of light and power at various and remote places. There, as we know, men are constantly employed in stringing, connecting, repairing, and rearranging such wires, sometimes on one post and sometimes on another. When the wires on or about which such men must work are highly charged with electricity they endanger the men. The place of work becomes, in some degree, unsafe. On whom rests the risk from such danger if it is unreasonable ? There are two well-established rules of the common law which in the early stages of industry were quite distinct and unlikely to conflict. We have, first, the rule that the employer owes the duty to provide a reasonably safe place to work and reasonably safe appliances to work with, and is liable for the proximate consequences to the ■servant from omission so to do. On the other hand, we have the rule that the employee assumes the ordinary risks of the business which he knows or, as an ordinary careful and intelligent man, ought to anticipate; among those risks is the likelihood of human infirmity in his fellow workmen, so that they may be careless. Hence the concrete rule that a master is not liable to his servant for negligence of a fellow-servant in the common employment.

As the size of industrial enterprises increased, complications arose. The master did not by his own hand build or equip the place for his employees nor even personally supervise the doing of such things, but hired men to do them: especially so in case of corporations, which can act only through some employee or delegate. The question at once presented itself, Are persons so employed to perform the master’s duty toward other employees fellow-servants of the latter within the rule above stated ? and, broadly, stated, the answer of the ■courts has been negative; but the line of distinction has been most difficult of definement and has been crowded to one side •or the other of individual situations by different courts and •sometimes by the same court without very clear coherence of reason. The layers of the track over which the trainmen :are to run have been held to be fellow-servants in the common enterprise of operating the railway, instéad of representatives •of the master in performing the latter’s duty to provide a .safe track for the trainmen to perform the particular work of running their train. Cooper v. M. & P. du C. R. Co. 23 Wis. 668. The same view is held as to a switchman who fails to keep turned a switch and thereby allows a train to run upon, a ear-repairer at work on the switch. Smith v. C., M. & St. P. R. Co. 91 Wis. 503, 65 N. W. 183. Other situations located upon the same side of the line are Okonski v. Pa. & Ohio F. Co. 114 Wis. 448, 90 N. W. 429; Williams v. Northern Wis. L. Co. 124 Wis. 328, 102 N. W. 589; Miller v. Centralia P. & W. P. Co. 134 Wis. 316, 113 N. W. 954. Some cases pre.senting the antithetic condition where the negligent employee was held not to be a fellow-servant engaged in common undertaking, but the representative of the master in performing, or ■failing to perform, the latter’s duty to the plaintiff, are Cadden v. Am. S. B. Co. 88 Wis. 409, 60 N. W. 800; Eingartner v. Ill. S. Co. 94 Wis. 70, 80, 68 N. W. 664; McMahon v. Ida M. Co. 95 Wis. 308, 70 N. W. 478; Jarnek v. Manitowoc C. & D. Co. 97 Wis. 537, 73 N. W. 62; Zentner v. Oshkosh G. L. Co. 126 Wis. 196, 105 N. W. 911; Smith v. Milwaukee E. R. & L. Co. 127 Wis. 253, 106 N. W. 829; Rankel v. Buckstaff-Edwards Co. 138 Wis. 442, 120 N. W. 269; Halwas v. Am. C. Co. 141 Wis. 127, 137, 123 N. W. 789.

It is undeniable that some of these decisions and many others in other jurisdictions have extended the meaning of the community of service essential to co-employeesbip vastly beyond the original conception of a relation wbicb gave opportunity for mutual acquaintance and watchfulness between fellow-servants greater than exists between master and servant. We now confront an industry relatively new, at least in-present development, where constantly employees must work in places which are rendered safe or unsafe by other agents- or employees hired to do the determining act for the very purpose of creating the safety: employees with whom the exposed workmen have no contact or community save that both are employed to carry on the general business of generating and distributing the master’s merchandise, as are traveling salesmen and the j anitor or elevator operator in his master’s store. Reasons which may have led to classing as fellow-servants men employed in conduct of railroads may fail to control situations-in this field, though apparently closely analogous. One distinction is in the sudden and unavoidable nature of the peril from a failure to take the proper and easy precautions, as in this case. A man at one moment is handling a cold and harmless wire which it is the duty of his master to keep so; the next he is in contact with a deadly peril, unforeseeable and unescapable by reason of the act of another whom his master has employed to perform the duty resting on the latter to' make and keep safe the place of work. We think reasons to-hold that the persons so employed are agents performing a nondelegable duty are very apparent. We think, too, that they are recognized and applied in such cases as Zentner v. Oshkosh G. L. Co., supra, and Smith v. Milwaukee E. R. & L. Co., supra, and that they should control this situation, although no very clear distinction may exist in principle from Williams v. Northern Wis. L. Co., supra, and Miller v. Centralia P. & W. P. Co., supra. It is at least apparent that this court has not yet established by clear precedent how far the-recognized principles of co-employment extend in their application to the particular situations existing in this industry. They have, we think, been carried in some industries to the full extent compatible with either reason, public policy, or humanity, but such precedents should not lead to further extension to new conditions, even though a pretty close analogy appear. We hold, therefore, that a distinct and independent employee to whom is delegated the duty to disconnect and make safe the wires -on which others must work is ordinarily a vice-principal and not a fellow-servant with the linemen and other like workmen. Whether Waldmann was such in this ease was at least susceptible of affirmative answer by the jury, as also whether the place or appliances furnished decedent were rendered not reasonably safe by failure of the master’s duty intrusted to Waldmann. It was error, therefore, to enter judgment of nonsuit.

By the Gourt. — Judgment reversed, and cause remanded for new trial.

!A motion for a rehearing was denied October 4, 1910.